Montgomery v. Montgomery, 3 Barb. Ch. 132

Montgomery v. Montgomery

3 Barb. Ch. 132 | New York Court of Chancery | 1848

The Chancellor..

There are several objections in this case to the granting of the relief asked for by the complainant. His solicitor, who saw the defendant about two years previous to the time of his examination as a witness before the master, testified that she was then in a state of apparent idiocy. If that was the case, he should have procured the appointment of a guardian ad litem to appear and defend this suit for her; and the complainant cannot obtain the benefit of a tacit admissions of the fraud charged against her in the bill.

Again ; the court does not annul a marriage contract upon the mere admission by the defendant of the facts charged in the bill. And I think the master erred in this case in supposing that the material allegations in the bill were established by the testimony before him. The only facts of importance that are proved are that the defendant was enciente at the time of her *135marriage, late in the fall of 1836, and that she was delivered of a living child in the March following ; that the complainant was probably induced to marry her upon the recommendation of his uncle; and that he left her immediately after the birth of the child. That uncle does indeed leave it. to be inferred that he had not only been guilty of adultery with his sister-in-law, but that he had also been so base and unnatural as to persuade his nephew to marry her, by, falsely representing her to be a virtuous woman, when he knew she was with child by himself. But to implicate the defendant in the conspiracy charged in the bill, the witness should have sworn to the facts charged. For, in the absence of any proof to the contrary, the legal presumption is that the child of which the defendant was subsequently delivered was the child of the complainant, although the testimony shows it must have been begotten before the marriage. And as the complainant and defendant had lived in the same family, for more than a year previous to their marriage, there is nothing to rebut the legal presumption on that subject but the tacit admission of Jones; which admissions, not being upon oath, are not evidence of any thing, as between these parties. Nor can the court safely act upon such admissions. For the necessary result of receiving such evidence tó annul a marriage, would be to produce collusion between parties, both of whom were willing to be released from the matrimonial tie. In this case, if the facts are as stated in the complainant’s bill, it would have been much more creditable to Jones had he come out at once and done what was in his power to repair the wrong, by swearing to the whole truth, than to leave it as matter of suspicion only. And if this were the only difficulty in the case, I should refer it back to the master to take further testimony; so as to give this witness another opportunity to swear to the truth of the allegations made in the bill, if they are in fact true.

It appears, however, from the complainant’s own showing, that his right to relief was .barred by lapse of time when this suit was commenced. The statute under which this bill is filed declares that a marriage may be annulled, on the ground that the consent of one of the parties was obtained by force or *136fraud, during the lifetime of the parties or one' of them. (2 R. S. 143, § 30.) The meaning of that provision, however, is that the suit can only be brought by the party whose consent’ hits been obtained by force or fraud, or by some person who has an interest in contesting the validity of the marriage, during-the lifetime of the parties to the marriage, or during the life of one of those párties, and not afterwards ; not that the suit may be brought at, any distance of time after the right to institute it occurred, provided either party is still living. The suit to annul a marriage, upon" the ground that the consent of One of the parties thereto was obtained by fraud, must therefore be brought within the time limited by law for the commencement of suits in this court. Arid the fifty-first section of the article of the revised' statutes relative to the time of commencing suits in equity, provides that bills for relief on the ground of fraud shall be filed within six years after the discovery, by the aggrieved party, of the facts constituting such fraud, and not after that' time. (2 R. 8. 301.) The complainant was of full age as early as October, 1836; for he was ¿ineteen at the time he came to reside with his uncle, two years previous to that time. And he states in his bill that the defendant admitted the facts constituting the fraud, as charged in the bill; soon after the marriage arid previous" to his leaving her in the spring of 1838. The six years allowed by law for bringing a suit to annul the marriage; on the ground of the alléged fraud, had expired several years before the filing of his bill. His right is therefore barred by the lapse of time; arid his bill must be dismissed on that ground, even if the alleged fraud was how fully established by the proof. It would for that reason be a useless expense to refer the case back to the master to take '.farther testimony id reference to the fraud charged in the bill.